Misery personified

Activists and supporters are urging the Supreme Court to ban the practice of triple talaq. Ramesh Menon says that the government will have to courageously act on the sticky issue to ensure that thousands of women get justice.

When Shayara Bano, who had been married for 14 years, saw a letter in the post from her husband, Rizwan Ahmed, she thought he must be asking her to return to him after he dropped her off at her parents’ home in Kashipur, Uttarakhand. But the letter just had three words: Talaq, talaq, talaq.

Within seconds, her world crumbled. Slowly, haunting images of her husband indulging in consistent domestic abuse, forcing her to undergo half-a-dozen abortions and threatening her with divorce time and again returned. Images those 14 years had somehow tried to bury deep within.

She remembered how she had been a simple, happy girl studying sociology in Uttarakhand before she got married. She does not know how she derived such courage, but she decided to put up a fight. She filed a case in the Supreme Court seeking a ban on triple talaq as it is usually practiced in India. She knew she was fighting for thousands of other Muslim women who had been similarly wronged and was also challenging the male-dominated Muslim law-making bodies. She soon realised the importance of the step she had taken as overwhelming support began to pour in. She had catapulted a private issue like triple talaq into a national debate. A letter with three words was what it took for her to find her courage.

At 28, MBA graduate Afreen was happy when a match with an Indore based lawyer materialized. Soon after the wedding, she was traumatised by domestic violence. He wanted more dowry. Her brothers had taken a huge loan for her wedding so she chose to silently suffer and never told her parents. A year later, her husband threw her out of the house. Her parents initially pleaded with her husband to take her back. He did so, only to throw her out again. He shot off a letter by Speed Post, divorcing her. The Supreme Court has accepted her petition challenging the talaq and asking for triple talaq to be banned. It is now part of Bano’s petition.

Increasing support

Support for Bano is snowballing. The Bharatiya Muslim Mahila Andolan (BMMA) has collected more than 50,000 signatures of Muslim women and men against triple talaq, nikah-halala and polygamy in its nationwide campaign. The National Women’s Commission has announced that it will also become a party to Bano’s class action suit which means that a group of people with similar grievances get together to sue as a group.

Though this is contrary to the Quranic tenets of justice, in addition to violating several rights guaranteed by the Constitution, Muslim women who go to their community courts do not get justice. These courts, dominated by conservative male elites, often uphold such divorces.

In hearings at the Supreme Court, Attorney General Mukul Rohatgi said that previous governments avoided bringing a law on triple talaq as it was a sensitive issue but underlined that even personal laws must not flout the Constitution that granted equal rights to all. It said that it was ready to bring in a law on marriage and divorce among Muslims if the practice of triple talaq was struck down as invalid and unconstitutional.

Banned practice

Ironically, triple talaq is already banned in 22 Islamic nations, including Pakistan and Bangladesh. Indonesia, the only country with more Muslims than India, has also banned it.

Shaina Hasan, Design Consultant, United Nations, says: “Triple talaq is an abhorrent practice that has no place in Islam and our country. Not only is it un-Islamic, it also goes completely against the principle of equality. That is why most Muslim countries like Bangladesh and Pakistan have banned it. If countries that closely follow Shariah law such as Saudi Arabia have banned it, what’s stopping India? It is really sad that the All India Muslim Personal Law Board (AIMPLB), instead of being sympathetic towards Muslim women who suffer due to this crime, has turned a blind eye to the demand for reform and has been completely resistant to change. The government must step in and abolish this regressive practice of triple talaq.”

Ever since they set up BMMA in 2007, activists Zakia Soman and Noorjehan Niaz have documented thousands of heart-rending stories from more than 30,000 of its members across India. Many of them have been victims of triple talaq. A BMMA survey found that 92 per cent of women want a ban on triple talaq and 88.3 per cent want the legal divorce method to be that of talaq-e-ahsan, which is spread over 90 days and involves negotiation and is not unilateral. The survey, which had 4,710 Muslim women respondents in 10 states, showed that they sought reform and codification of Muslim law based on Quranic principles. They felt they did not have the rights enshrined in the Quran.

Ruining lives

That maintenance is a real issue can be gauged by the fact that the families of 73.1 per cent earned less than Rs. 50,000 annually. Nearly 53.2 per cent had faced domestic violence. Shockingly, 95.5 per cent of them had not heard about the AIMPLB. Mumbai-based Niaz said: “Triple talaq is ruining the lives of so many women. Men find it easy as they just need to utter talaq three times. Men are getting away with it as there is no law that can punish or stop them. Daily, we hear so many painful stories from women. This is what gives us the energy to fight, demanding legislation to ban triple talaq.”

More and more Muslim women in India are finally finding the courage to fight for their legal rights in matters related to marriage and divorce. They are now challenging the concept of triple talaq and demanding a ban on it. They are capturing the imagination of other Muslim women who until now suffered silently and had similar stories punctuating their lives – being divorced through Speed Post, Facebook, Skype, Whatsapp, text messages and phone calls without their consent and sometimes even sans their presence.

Members of BMMA protesting against triple talaq. Pic: BMMA

Then there is the practice of nikah-halala. If the husband is ready to take back his divorced wife, it can only happen if the wife marries another man, consummates the marriage and then divorces him – the process of nikah-halala. Shayara Bano has asked the Supreme Court to also ban nikah-halala and polygamy which many women now see as typical patriarchal practices that violate their human rights.

Firoz Bakht Ahmed, the grandnephew of freedom fighter Maulana Azad, points out, “Shayara has challenged ‘instantaneous triple talaq’ and not triple talaq itself, which is allowed by the Quran as long as the three utterances are spread over 90 days. Shayara’s is the first such case where a Muslim woman has challenged a personal practice, citing the fundamental rights guaranteed by the Indian Constitution. With AIMPLB deciding to oppose any move to scrap triple talaq and contest the Shayara Bano case, the stage is set for another Shah Bano-like confrontation like in the 1980s.”

Patriarchy rules

Muslim leaders and political parties have largely kept out of the debate. Many feel this is because patriarchal attitudes dominate.

Documentary film maker Sabiha Farhat points out: “It is a double whammy for Indian Muslim women as they have been let down by national leaders and religious leaders. What the community needs today is a leader like Ambedkar, who codified the Hindu personal law despite opposition from leaders like Sardar Patel, Syama Prasad Mookerjee, Madan Mohan Malviya, Dr. Rajendra Prasad and many others to give us the Hindu Code Bills standing against Hindu orthodoxy that saw this as a a threat to patriarchy. These mainly gave Hindu women the right to property, equality in filing of divorce, right to maintenance and guardianship of children, and abolition of polygamy. After these many more reforms have been carried out, Hindu personal law is on a progressive path compared to Muslim personal law.”

Protecting tradition, culture and religious practice takes precedence despite women’s human rights being trampled upon. Triple talaq is just one example. Maneka Gandhi, the Union Minister for Women and Child Development, cited cultural concerns for not supporting the criminalization of marital rape in India. Similarly, cultural and religious opposition has slowed the pace of reform of Muslim personal law, withholding the benefits that accrue from multiculturalism.

Firoz Bakht Ahmed adds, “All that AIMPLB has managed so far is to tarnish the image of Indian Muslims. Most statements emanating from the board that the media quotes are taken to be the community’s position. The truth is that an average Muslim thinks differently and is not influenced or governed by what AIMPLB states.”

Political Rhetoric

The issue of Muslim personal law has been raised numerous times but then has simply been lost to political rhetoric. Even when it was raised in the context of the Uniform Civil Code, which is a policy goal for India in the Directive Principles of State Policy, it evaporated in political jugglery by various religious communities which did nothing to ameliorate the plight of Muslim women.

In 2005, the government appointed the Sachar Committee to evaluate the socio-economic conditions of Muslims in India. While the report established that the Muslim community was economically, socially and educationally lagging, the committee was not mandated to look into the status of Muslim women. There has been no empirical study conducted by the government to evaluate the problems faced by Muslim women especially with regard to Muslim personal law. And this, despite the raucous communalism raised in the context of the Uniform Civil Code in political circles. Muslim personal law is unique, when compared to family law applicable to other communities, because it is largely uncodified. In India, both state courts and community courts adjudicate on issues of Muslim personal law.

As Farhat points out: “To begin with, Muslim personal law is not even codified. It can only be codified by an Act of Parliament, it can’t be done by individuals. Muslim women have been left to the mercy of maulvis who are orthodox and patriarchal. There have been many Muslim women’s organisations and men who have raised the demand to codify Muslim personal law and to do away with triple talaq but no political party seem to care. None of them has spoken against triple talaq. Muslims do not have a leader of their own, they have always voted for mainstream political parties, regional or national. Hindu leaders are their leaders and they must fight for the rights of Muslim women and stand against Muslim orthodoxy.”

Unclear laws

Even when Muslim matrimonial cases come to state courts, there are several issues that stand in the way of justice for these women. Often, judges in lower courts are not clear on aspects of Muslim family law because they tend to depend only on codified law. Nevertheless, landmark judgments by the Supreme Court since the 1970s have often referred to sources beyond statutes, such as Islamic law followed in other countries, to push for reforms within Muslim law. More specifically, the judgments have referred to Islamic State law in countries where women enjoy greater rights than in India such as Tunisia, Libya, Jordan, Iraq, Indonesia and Malaysia.

Ahmedabad-based Soman pointed out: “Triple talaq is un-Quranic, not in keeping with the Indian Constitution and is unjust and inhuman. It has to be abolished. There is no mention of talaq in the Quran but the leaders of the Muslim Personal Law Board have stonewalled the issue of triple talaq, saying that it is an attack on Islam. It is a patriarchal conspiracy to deny women their rights. They have manufactured the concept of how a Muslim man can say talaq three times and secure an instant divorce. We have to stop the patriarchy and conservatism that is passed off in the name of Islam.”

The Quran clearly lays down how a dialogue has to be permitted to evolve, spread over 90 days, between the estranged couple. When that does not work, relatives start mediating. Only if that also fails, can talaq be allowed. Unilateral talaq, as practiced in India, is not allowed by the scripture. The norm for divorce is to pronounce talaq once and, in the 30 days that follow, there is room for the couple to reconcile. If that does not happen, talaq is pronounced again after which, for the next 30 days, relatives try to work out a reconciliation. If this too fails, the third talaq is pronounced. Only then can divorce be granted after another 30 days. The idea of the long-drawn-out period is to enable the couple to grab any window of opportunity for reconciliation.

However, it hardly ever works out like that. Look at how J. Begum was divorced unilaterally by her husband by the oral pronouncement of talaq, three-and-a-half years after marriage. Though she had a nikahnama, she did not receive her mehr nor does she know what the amount was. She has also not received any maintenance allowance from her husband after the divorce though she managed to get back her jewelry and other belongings from her husband’s house. She now lives with her parents in Odisha. There are thousands of such heart-rending stories of Muslim women who have become victims of instantaneous triple talaq.

As she did not have the money for any formal education, 20-year-old Rubina from Bhopal worked as a domestic help to make ends meet. Three years after she was married, her husband used the triple talaq method to divorce her all of a sudden. Her mehr, fixed at Rs. 7,000, was not handed over. Nor were her personal belongings or jewelry. She was also not offered any maintenance. The man soon remarried. She and her seven-year-old daughter now live with her parents.

Justice is a distant dream for her, and thousands like her.

Ramesh Menon14 July 2017

Ramesh Menon is a Delhi based journalist and documentary film maker who got the Ramnath Goenka Award for Excellence in Journalism. He is an Adjunct Professor at Symbiosis Institute of Media and Communication, Pune.

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